Federalismo fiscal e qualificação da decisão na administração pública: uma possível mudança de paradigma do ICMS ecológico no Rio Grande do Sul

Abstract

The current Ecological ICMS legislation in the State of Rio Grande do Sul exclusively contemplates quantitative subcriteria for the transfer of the ICMS share to the municipalities of Rio Grande do Sul. This prediction is disconnected from the use of Law within its promotional function, overcoming the merely structural model. Thus, the objectives of this work are to develop the relationship between the current scenario of Brazilian fiscal federalism, the use of consequentialism as a management instrument and the institute of Ecological ICMS in the state of Rio Grande do Sul. To this end, a analysis of the distribution of tax revenues in Brazil, demonstrating the great centripetal collection force of the Union, which has historical relations with the national federalization process. Furthermore, the current Management Administration model no longer includes a merely self-referential vision, with public managers being required to effectively achieve the intended objectives. Within this scenario, consequentialism emerges as an important management instrument, recently inserted into federal (Law nº 13,655/2018) and state (Law nº 15,612/21) legislation. The use of consequentialism, within a pragmatic view of Law, makes it possible to qualify the decision of public managers, and within the scope of the Ecological ICMS there is a two-pronged favorable nature. On the one hand, it allows the federated states, when defining the criteria for transfers, to carry out normative structuring in order to better achieve the intended objectives. On the other hand, it imposes on municipal public managers the obligation to comply with the best administrative practices for the purpose of receiving state transfers, in order to better meet the imposed criteria, requiring an active and analytical stance from them. Therefore, it is necessary to review the criteria used for the transfer of the municipalities' share in relation to the Ecological ICMS in Rio Grande do Sul, inserting qualitative subcriteria that enable the implementation of a Managerial Public Administration with the consequent improvement of public policies aimed at environmental protection. [resumo fornecido pelo autor]